The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
After the jury returned its verdict in favor of defendant on April 11, 2002, counsel for plaintiff orally moved for a mistrial on the ground of the alleged misconduct of defendant's counsel during the course of his closing argument. *fn1 The undersigned heard the preliminary arguments of counsel on April 11 and the morning of April 12, 2002, and the more detailed arguments of counsel at a hearing on April 18, 2002 scheduled for that purpose. Plaintiff filed memoranda in support of his oral motion for mistrial in accordance with the undersigned's scheduling orders. See Plaintiff's Legal Memorandum Regarding Motion for New Trial and Other Sanctions (Docket No. 115); Plaintiff's Supplemental Memorandum Regarding the Motion for New Trial and Other Sanctions (Docket No. 118). Defendant filed memoranda in opposition to plaintiff's motion for mistrial in accordance with the undersigned's scheduling orders. See Defendant's Opposition to Plaintiff's Motion for Mistrial (Docket No. 109); Defendant's Supplemental Opposition to Plaintiff's Motion for Mistrial (Docket No. 116).
Additionally, defendant moved to amend the Order denying Defendant's Motion for Judgment on the Pleadings to certify the issue as a "controlling question of law" pursuant to 28 U.S.C. § 1292(b) (Docket No. 110). *fn2 Plaintiff filed an opposition to defendant's motion, see Plaintiff's Opposition to Motion to Certify Pursuant to 28 U.S.C. § 1292, and defendant filed a Reply to plaintiff's opposition. See Defendant's Reply in Support of its Motion to Certify Pursuant to 28 U.S.C. § 1292 (Docket No. 119).
Upon consideration of plaintiff's motion for mistrial; defendant's motion to certify pursuant to 28 U.S.C. § 1292; the memoranda in support thereof and in opposition thereto and the entire record herein, the undersigned, for the reasons offered by plaintiff, will grant plaintiff's motion and deny defendant's motion.
During the course of defendant's examination of plaintiff, the undersigned, after consideration of the arguments of both counsel, precluded defendant from eliciting testimony with respect to plaintiff's motivation in bringing this action. Specifically, the undersigned ruled from the bench that "[plaintiff's] motivation for filing the lawsuit is irrelevant." Excerpt of Transcript of Trial, April 11, 2002 ("Tr.") at p. 9, lines 17-18. Additionally, the undersigned precluded defendant from eliciting testimony regarding the passage of 15 months from the occurrence at issue in this action and the filing of the complaint. Tr. at p. 5, lines 16-21; p. 11, lines 1-3, 19-20. During the same discussion, the undersigned further ruled that
I know we haven't [reached] the point at which we will address any concerns regarding closing arguments, but while I'm thinking about it, perhaps this is an appropriate time to say that I would not expect argument that Mr. Manion waited 15 months to the file a lawsuit[.] Tr. at p. 9, lines 4-9 (emphasis supplied).
Moreover, the undersigned determined that there was no factual basis in support of any argument that plaintiff "waited" for 15 months, since during that period he engaged counsel, and counsel conducted a pre-suit investigation. Tr. at p. 9, lines 9-15. Finally, the undersigned ruled that the affirmative defense of laches was never pled, and therefore was not available. Tr. at p. 12, lines 15-18; p. 13, line 23- p. 14, line 3.
Notwithstanding the undersigned's unequivocal rulings, defendant's counsel, within seconds of beginning his closing argument, made the first of several references to the testimony and the affirmative defense the court had excluded:
We are at the mercy of them to bring a timely claim.
You know he waited for 15 months. Did he give you any explanation at all why? No, not a word.
I suggest to you that if you're hurt, you're going to do something about it right away. You're not going to wait 15 months. Tr. at p. 29, lines 3-4, 14-15, 16-18.
Later, defendant's counsel argued that he was unable to offer as evidence the engine logs for ...